Stites-Cunningham et al v. Aqua Leisure Industries, Inc. et al

Filing 10

STIPULATION and ORDER 9 to amend Complaint signed by Senior Judge Lawrence K. Karlton on 4/10/2009. Plaintiffs granted permission to file (Proposed) Amended Complaint, attached as Exhibit A, subject to parties' express conditions set forth in Stipulation including it is w/out prejudice or effect to all rights and privileges defendants have to raise defenses, objections, challenges, etc. in Response thereto. (Marciel, M)

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G. Dennis Halkides, CSB 045286
LAW OFF ICES OF

HALKIDES, MORGAN & KELLEY
833 MISTLETOE LANE POST OFFICE DRAWER 492170 REDDING, CALIFORNIA 96049-2170 [phone] [phone] Fax [e-mail]

Attorneys for Plaintiffs UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA No. 2:09-CV -00590-DAD GRETCHEN STITES-CUNNINGHAM, Individually and as Guardian Ad Litem for ASHLEY STITES, a minor, Plaintiff, v. AQUA LEISURE INDUSTRIES, INC., WAL-MART STORES, INC., THE UNITED STATES OF AMERICA and DOES 1 through 50, Defendants. _____________________________/ AQUA LEISURE INDUSTRIES, INC., WAL-MART STORES, INC., Cross-Complainants, v. UNITED STATES DEPARTMENT OF THE INTERIOR; UNITED STATES DEPARTMENT OF AGRICULTURE, and ROES I-X, inclusive, Cross-Defendants _____________________________/

STIPULATION TO AMEND COMPLAINT PURSUANT TO FRCP 15(a)(2); PROPOSED ORDER

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/// I. STATEMENT BY PLAINTIFFS Plaintiffs GRETCHEN STITES-CUNNINGHAM, individually and as Guardian ad Litem for ASHLEY STITES, filed a State law form complaint in the Superior Court of the State of California, in and for the County of Shasta, alleging causes of action for general negligence and products liability against Defendants Aqua Leisure, Industries, Inc., and Wal-Mart Stores, Inc., after Plaintiff sustained serious personal injuries while riding down a snow covered hill at a popular recreation area on a snow tube manufactured by Defendant Aqua Leisure and sold by Defendant Wal-Mart Stores. Defendants subsequently sued the United States of America as a Third Party Defendant and the case was removed to Federal Court. Plaintiffs contend that they previously filed a Federal Tort Claim against the United States Department of Agriculture premised upon the maintenance of a dangerous and concealed condition upon their property, which condition allegedly caused or substantially contributed to Plaintiff's injuries. Plaintiffs claim that the

requisite period of time has passed and their Federal Tort Claim is now deemed rejected by the United States, thereby permitting Plaintiffs to proceed with their suit against the United States. Plaintiffs have requested, pursuant to Federal Rules of Civil Procedure, Rule 15(a)(2), that the parties permit Plaintiffs to file the [Proposed] Amended Complaint attached hereto as Exhibit A. In requesting this, Plaintiffs agree, acknowledge and understand that Defendants deny the allegations made against them in the attached amended complaint and that Defendants reserve all rights, defenses, objections,

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challenges and the like that may be raised or otherwise directed toward said amended complaint.

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II. STIPULATION Accordingly, pursuant to Federal Rule of Civil Procedure 15(a)(2), Plaintiffs, GRETCHEN STITES-CUNNINGHAM, individually and as Guardian ad Litem for ASHLEY STITES, Defendants AQUA LEISURE INDUSTRIES, INC., WAL-MART STORES, INC., and THE UNITED STATES OF AMERICA hereby agree, pursuant to all conditions set forth herein, to permit Plaintiffs to file the [Proposed] Amended Complaint submitted herewith as Exhibit A. The parties further agree, acknowledge and understand that in so stipulating Defendants reserve all rights, defenses, and objections that may be raised or otherwise directed toward said amended complaint. Plaintiffs further agree, acknowledge, and understand that they will not use this stipulation for any purpose in this litigation other than to seek this Court's approval for filing of the [Proposed] Amended Complaint, Exhibit A. IT IS SO STIPULATED: DATED: April 10, 2009 LEWIS BRISBOIS BISGAARD & SMITH LLC By:_/S/ BRUCE L. SHAFFER_______ Attorneys for Defendants AQUA LEISURE INDUSTRIES, INC. and WAL-MART STORES, INC. DATED: April 10, 2009 U.S. ATTORNEY'S OFFICE By:_/S/_KELLI L. TAYLOR___________ Attorneys for Third Party Defendant UNITED STATES OF AMERICA DATED: April 10, 2009 HALKIDES, MORGAN & KELLEY BY:_/S/ G. DENNIS HALKIDES G. DENNIS HALKIDES Attorney for Plaintiffs

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ORDER Good Cause Appearing and Pursuant to the parties' stipulation under Federal Rules of Civil Procedure, Rule 15(a)(2), this Court hereby grants Plaintiffs permission to file the [Proposed] Amended Complaint, attached hereto as Exhibit A, subject to the parties' express conditions set forth in the stipulation including that it is without prejudice or effect to all rights and privileges Defendants have to raise defenses, objections, challenges, etc. in response thereto. IT IS SO ORDERED: DATED: April 10, 2009

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